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Friday, January 25, 2013

The issue is arcane, but the consequences are huge. It’s a case study of how the Senate
Republican minority’s abuse of the filibuster to block appointees, and the
failure to fill vacancies on what is often described as the nation’s second
highest court combined to produce potentially disastrous consequences.

Hundreds of decisions by the National Labor Relations Board
(NLRB) could
be invalidated and the entire agency effectively shut down if a
ruling by three Republican appointees to the U.S. Court of Appeals
for the District of Columbia Circuit is upheld by the U.S. Supreme Court.

The decision involves three appointees to the NLRB, a
referee for disputes in the American workplace whose power extends
beyond unionized workplaces.
The five-member NLRB board can’t function without at least three
vacancies filled. But for months Senate
Republicans blocked three nominations by President Obama.

Finally, the president resorted to what is known as a
“recess appointment” – naming his nominees to the NLRB while the Senate was
away for the holidays. But Republicans
used a technicality to try to pretend the Senate still was in session: Every
few days someone would stop by the near-empty Senate chamber, declare the
Senate “in session” and then promptly declare the session over.

This sham was good enough for three Republican-appointed D.C.
Circuit judges. Ignoring longstanding practice and precedent, they ruled that
the recess appointments were unconstitutional.
Moreover, the ruling could invalidate all the decisions made by those
three recess appointees over the last year.

But
wait, there’s more: Since one seat on the NLRB already is
vacant that means, if the decision is upheld, the NLRB will have only one
member. As so long as it doesn’t have 3
members, it can’t function at all.

Richard Cordray

And
still more: Richard Corday, who heads the Consumer Financial Protection
Board, was appointed the same way. That
happened after Senate Republicans first made clear they would never allow a
vote on President Obama’s first choice, Elizabeth Warren (a decision they may
now regret, given the
job she ultimately got instead) and then stalled the nomination of
Cordray. A separate case is challenging
the Cordray appointment.

None of this should come as any surprise. Last October, Pulitzer-prize winner Steven
Pearlstein, then a columnist for The
Washington Post, blasted
the D.C. Circuit for its extreme right-wing activism.

He wrote:

…[D]ysfunctional
government has become the strategic goal of the radical fringe that has taken
over the Republican party. After all, a government that can’t accomplish
anything is a government that nobody will like, nobody will pay for and nobody
will want to work for. For tea party conservatives, what could be better than
that?

Nowhere has this
strategy been pursued with more fervor, or more success, than the U.S. Court of
Appeals for the District of Columbia Circuit, where a new breed of activist
judges are waging a determined and largely successful war on federal regulatory
agencies.

It didn’t have to be this way. As Pearlstein also pointed out:

The prospect that some balance might be restored
to the nation’s second-most powerful court has long since faded after Senate
Republicans successfully filibustered every nominee put forward by President
Obama for the three vacant seats on the D.C. Circuit.

That was then. Soon there will be four vacant seats.

Here’s why that matters: The
11-member D.C. Circuit currently has eight active members—five Republican
appointees and three Democratic appointees—and, as noted above, three vacancies
(the fourth vacancy will occur on February 12th). If the president had been able to nominate
and confirm three people to fill the vacancies, the Court would have had a
Democratic majority. That means either
the panel decision could have been different or the entire eleven-member court may
have been more likely to review the panel's decision – with a six-to-five majority appointed by Democratic
presidents. But since that didn’t
happen, Pearlstein wrote, there was only one other alternative:

The only hope now is that Chief Judge David
Sentelle and some of the court’s more intellectually honest conservatives will
move to rein in the judicial radicals before they turn the courts into just
another dysfunctional branch of a dysfunctional government.

1 comment:

What is a sham is that the author believes he has written a turly brilliant and critical piece while failing to recognize that the entire article is written from a biased and partisan opinion. For some of us who are well educated and reasoned were are tired of nothing but partisan points of view being spewed from both sides. In this case, it should be obvious to anyone that the decision of the court is the correct one and the opinion is very solid. Why is it so difficult for the far left to understand the basic language of the Constitution. I will not defend the far right either because I find them to be hypocrites as well.